Clyde & Co successfully obtain a declaration that the Court had no jurisdiction to try a claim

Clyde & Co were instructed to represent two NHS Trusts in a claim brought by the Claimant who alleged that he had been unlawfully discriminated against by the Defendant Trusts.

Proceedings were issued on 13 September 2023 and due to be served by 13 January 2024, in accordance with CPR 7.5(1). On 10 January 2024, the Claimant purported to serve by post an unsealed amended copy of the Claim Form with accompanying Particulars of Claim. 

We applied for an order for a declaration that the Court had no jurisdiction to try the claim pursuant to CPR 11.1(6) and for the claim to be struck out pursuant to CPR 3.4(2)(b) and (c) on the grounds that service was defective as the amended Claim Form was (a) an amendment of a photocopied Claim Form, not an original; and (b) had not been sealed by the Court. Both of which are a requirement for valid service.

The law 

We relied on the case of Ideal Shopping Direct Ltd and others v Mastercard Inc and others [2022] 1 WLR 1541. This case is also cited in the current edition of the White Book 2023 at para 3.10.4:-

“At first instance Morgan J held that the service of unsealed copies of the claim forms was irregular and refused to make orders rectifying this error under rr.6.15(2), 6.16 or 3.10. C appealed the rulings as to irregularity and as to r.3.10 (no appeal being made as to the rulings as to rr.6.15(2) or 6.16). The Court of Appeal dismissed the appeal.”

The White Book commentary at paragraph 6.3.2 (page 228) is also relevant:

“Service of original sealed claim form generally required Rule 7.2(1) states that proceedings are started when the court issues a claim form at the request of the claimant and r.2.6(1) states that the court must seal the claim form on issue. In practice, when a claim form is issued there is an original sealed claim form retained by the court and original sealed claim forms provided so that one can be retained by the claimant and one or more can be served on the defendants (see further para.6.2.3). The seal is intended to give a clear message to the defendant that he or she is being served with originating process by authority of the court, and not being sent some informal demand…(continued at page 229) In Ideal Shopping Direct Ltd v Mastercard Inc [2022] EWCA Civ 14 the Court of Appeal held that service of an unsealed copy of the claim form prior to acceptance by the court of the electronically issued claim form was not good service and did not amount to an error of procedure which could be corrected under r.3.10.”

The starting point is that the Claimant must serve a sealed Claim Form. The whole system of the CPR is premised on the service of a sealed Claim Form. It matters not whether the original Claim Form was sealed, as the amended Claim Form must also be sealed when served. The Claimants solicitors did not try to suggest that the amended Claim Form had in fact been sealed and did not provide any evidence as to why they served an unsealed copy. 

The service of a photocopy of the Claim Form in and of itself is not good service, as referenced within the Ideal Shopping case at para 138 and cannot by rectified by CPR 3.10.

It was unclear as to why it was left until the very end of the service period to make an amendment to the Claim Form, especially since the Claimant’s solicitors had been instructed since as far back as June 2023. The Claimant had every opportunity to comply with the ordinary rules of service but for whatever reason failed to do so.

Outcome

After hearing submissions, the Judge held that the facts could not be distinguished from Ideal Shopping, that service had been defective and that defect was not capable of being remedied under CPR 3.10. The Judge considered whether the claim should be struck out or dismissed; ultimately he held that this makes no practical difference and he opted to dismiss the claim. The Claimant was ordered to pay the Defendants’ costs of the action. 

Case comment

This case is a stark reminder of the strict rules relating to service of proceedings. Clyde & Co’s healthcare team have significant experience in supporting healthcare professionals and providers throughout these difficult cases and achieving successful outcomes.